Guardianship, curatorship, judicial protection... Legal protection in France

A person under guardianship, curatorship, or judicial protection benefits from legal protection.

On an equal footing, every citizen enjoys rights. These rights are therefore difficult to exercise when the individual is no longer able to act in their own interest. This is why the law allows individuals in difficulty to be heard and helped through the provision of legal protection. A person mandated by the legislator therefore assists the supported person in making decisions and other serious acts of civic life (serious being a word that the legislator uses to signify high importance). The scope of this legal precaution goes as far as funeral arrangements.

Legal protection in France

Definition

Legal protection is considered when a person is deemed "unable to provide for their interests alone due to a medically observed alteration of either their mental faculties or their physical faculties, which prevent the expression of their will" (Article 425 of the Civil Code).

In accordance with its mission to defend rights and freedoms, justice will decide on a case-by-case basis, preserving the autonomy of the person placed under legal protection as much as possible. The person will thus benefit from tailor-made protection, established primarily in their best interest.

The request is made to the Guardianship Judge of the District Court (the one responsible for the adult to be protected). Legal protection can be requested by:

• the person themselves,

• the spouse,

• a direct family member (descendants, ascendants, siblings),

• a person with stable and close relations with the adult,

• the curator (if curatorship is already in place),

• the special representative (if a protective guard has already been engaged),

• the public prosecutor.

In exceptional cases such as a serious accident, medical personnel can also invoke the most suitable legal protection regime (usually in an emergency, this will be protective guardianship).

Form of request: the written application must contain the civil status of the person to be protected, the reasons for the request (often justified by an official medical certificate), and the contact details of those close.

The judge will receive the person concerned and various close persons who can shed light on the situation at a non-public hearing. After a thorough evaluation of the file, the most suitable decision will be made.

In the event of death

These legal provisions provide support for the serious circumstances of the protected persons' life, including their disappearance. The legislator's objective is to provide the additional thought and action required by designated representatives (guardians, curators, mandated persons), who will act in the best interests of the person concerned. This mission of protection and support applies to the entire life of the person concerned. That is why, in case of death of the representative, the judge will automatically designate a new person to continue the legal protection under the best conditions.

This protection continues even after the death of the protected person, as the memory and wishes of the deceased must be respected and enforced. The representative will ensure the proper execution of the will and the last wishes of the deceased concerned. Article 1215 of the Code of Civil Procedure:

In the event of the death of an adult subject to protective measures exercised by a judicial representative for the protection of adults, the latter may, in the absence of known heirs, seize the deceased's notary for the settlement of the succession or, if necessary, ask the president of the departmental chamber of notaries to appoint one.

Regarding insurance coverage, some judges decide not to validate insurance contracts when they have been subscribed by the representative. Free and informed consent remains to be proven, as the protected adult is, by definition, unfit to enter into such contracts.

There are four types of legal protection, each of which can be adapted according to the degree of distress of the person to be protected.

From the most binding to the least, AdVitam explains the scope of each regime.

Guardianship in France

Definition

Guardianship is intended for persons:

• Whose mental faculties are impaired by an illness.

• Suffering from a disability or weakening due to age.

• With physical faculty alterations that prevent the expression of their will.

• Whose overall condition results from jeopardizing the fulfillment of family obligations.

There are three types of guardianship:

1. Guardianship with family council

Also called "complete" or "family" guardianship, the family council (consisting of 4 to 6 members appointed by the Guardianship Judge) chooses a guardian and a substitute, whose mission will be to supervise the guardian's activities. The guardian can act alone for routine administrative acts (invoices, current accounts, etc.), but must obtain the agreement of the family council for all the most serious acts. If needed, they can be paid if the council president (the Guardianship Judge) decides.

2. Legal administration under judicial supervision

Without a family council, the judge chooses the "Legal Administrator" of the adult, who can only perform acts of preservation. For any other act, they must request the agreement of the judge. The substitute guardian is not mandatory in this measure.

3. Guardianship management entrusted to a professional

When no family member is deemed suitable to be a guardian, the adult is taken care of by a professional guardian called a "judicial representative for the protection of adults." A list is drawn up each year by the prefect and validated by the public prosecutor. Working in a guardianship association or in a care facility, the judicial representative is either delegated to guardianship or practices privately. They are appointed for modest estates and ensure their proper management. Their remuneration depends on the judge's decision and the assets they are responsible for.

In the event of death

In the case where the protected person dies, the legal provisions allow the guardian to decide on the fate of the entire estate.

Curatorship in France

Definition

Curatorship is a legal protection provided when protective guardianship is considered insufficient to protect the interests of the individual. Curatorship is only considered when the individual's faculties' alteration is proven. A certificate is issued by a doctor (this doctor is part of a list pre-established by the Public Prosecutor), describing the alterations and the disease's expected course. There are several degrees of curatorship, which include:

1. Simple curatorship

Acts considered for the routine management of civil life are authorized (Article 440 of the Civil Code). However, more serious acts of disposition must be assisted by the designated curator . Any act considered harmful to the protectee's interests can be revoked.

2. Amended curatorship

If circumstances have not improved, the Guardianship Judge may decide to update and strengthen the previously established curatorship.

3. Reinforced or aggravated curatorship

These measures mainly concern salaries received by the person to be protected. The curator will then be responsible for routine financial management since the person under curatorship exhibits deviant behavior.

If the judge finds no suitable person to become a curator within the protectee's circle, it is possible to resort to a curator chosen by the judge, who will be arbitrarily remunerated from the funds of the person to be protected. The judge may also designate a substitute curator, if necessary, to monitor the acts passed by the curator or to replace them in case of a conflict of interest.

In the event of death

Persons under curatorship have limited freedom and do not always focus on important matters, such as their future death. This is why the selection of the curator is heavily scrutinized. The protected adult's death does not endanger their estate.

Judicial protection in France

Definition

Judicial protection is a temporary measure. In an urgent situation, justice and close persons act in the interest of the person to be protected for a limited period of one year, renewable. During this period, the adult can maintain some autonomy in most procedures, similar to a non-protected person. They cannot perform any of the acts for which the special representative has been designated, nor can they divorce.

In the event of death

If the person under judicial protection dies, it is unlikely that legal provisions have been overlooked. Indeed, the urgent and often hospital-related nature of this measure allows for considering the most disconcerting scenarios for the individual. Last wishes, advance directives, and testament are usually addressed.

Mandate for future protection in France

Definition

This mandate can be established by the person themselves or by the parents of a child. A principal thus chooses a representative who will look after the person to be protected (themselves or their children) and all or part of the associated estate. This measure is taken by the principal to avoid undergoing judicial proceedings (hearings for guardianship/curatorship).

There are two types of mandates for future protection:

1. Notarized mandate for future protection

This is a written act, which must be authenticated by a notary. This is especially the case for mandates taken by parents for their child. The representative will have the most extensive scope of actions (the only prohibition: the sale/transfer of the minor's estate assets).

2. Private mandate for future protection

The three required signatures are those of the principal, the representative, and the person designated to control the representative. The additional signature on the act can result in two types of private mandates:

• the handwritten mandate for future protection

• the mandate for future protection according to the model imposed by decree (which you can download here).

The validation of this act is done through a tax administration process, and its application takes effect when the principal is designated as incapable, or at a date they have previously validated. Only everyday obligations (income management and other civil activities) will be handled by the representative. The judge will intervene only if the execution of the mandate proves difficult.

In the event of death

This protective measure is generally considered when death is imminent. The precautionary nature helps to secure all aspects of the person's life if they lack a guardian or if they die. The mandate for future protection is inherently suited for the eventuality of death.

You can find all the legal provisions in the Civil Code on the website tutelle-curatelle.com.